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Senate Environmental Committee Hears Testimony On The Need To Help Communities Implementing MS4 Stormwater Pollution Reduction Plans

On September 11, the Senate Environmental Resources and Energy Committee when to Franklin County to hear comments from a variety of presenters on the need to provide financial help and lower cost best management practice options for local governments to implement the federal MS4 Stormwater Water Pollution Reduction Program.

Sen. Gene Yaw (R-Lycoming), Majority Chair of the Committee, said his objective for the hearing was to better understand the MS4 Stormwater Water Pollution Reduction Program from a local perspective and what the problems are.

Sen. John Yudichak (D-Luzerne), Minority Chair of the Committee, said 32 municipalities in his district came together to reduce the cost of implementing MS4 requirements because they realized they were not going to get around the federal MS4 unfunded mandate. He also said several communities were actually fined by EPA for not complying.

[Note: Franklin County was one of the 4 pilot counties to develop a county clean water plan to reduce nutrient and sediment pollution as part of the Phase III Chesapeake Bay Watershed Implementation Plan.

[The Franklin County Conservation District worked with stakeholders throughout the county to develop specific recommendations on how to achieve the required pollution reduction goals, including stormwater.

[The County did not offer comments to the Committee. Click Here to learn more about how they developed their plan, in their own words.]

Hearing Highlights

Steve Taglang, Acting Director of DEP’s Bureau of Clean Water, provided an overview of the MS4 program and its requirements, noting it was started by the U.S. Environmental Protection Agency in the 1990s and the first MS4 permits requiring stormwater pollution reductions were issued in 1997.

Currently, 1,061 communities across the state are required to develop MS4 stormwater plans. The basic elements of the program include--

-- Public Education and Outreach on Stormwater Impacts;

-- Public Involvement/Participation;

-- Illicit Discharge Detection and Elimination;

-- Construction Site Stormwater Runoff Control;

-- Post-Construction Stormwater Management; and

-- Pollution Prevention/Good Housekeeping.

[Note: All MS4 communities submitted plans to DEP saying specifically what they will do to meet the MS4 Stormwater Pollution Reduction requirements on September 17, 2017. Now they are in the process of implementing what they said they would do.]

Taglang said MS4-permitted municipalities can use any scientifically defensible method to calculate their current pollution load. DEP provides a simple method, but more sophisticated methods can be applied at permittee discretion.

He explained sediment pollution is used as an indicator of the many impacts urban areas have on water quality, including aquatic habitat destruction, highly variable flows, temperature variation, and – of course-- sediment accumulation.

For example, if an MS4-permitted municipality’s current pollution load is calculated to be 1,000 pounds of sediment, and a 10 percent reduction is required, BMPs have to be planned, designed, and constructed to accomplish a 100-pound sediment reduction within five years after the Pollutant Reduction Plan is approved.

He said, municipalities with MS4 permits can select from a wide variety of BMPs [Best Management Practices] depending on local cost-effective opportunities. Most BMPs infiltrate stormwater into the ground, filtering out pollutants and slowing down stormwater discharge to streams, which reduces erosion and flood damage.

For example, he said a common BMP choice is the conversion of an older flood control pond that was not designed to capture sediment into one that does capture sediment. BMPs can be on public lands or private property. Pollutant Reduction Plans can be updated at permittee discretion anytime to alter the selected BMPs.

In response to a question from Sen. Yaw, Tagland said there is an opportunity to review and update MS4 requirements every 5 years.

[Note: In addition, DEP is now updating its Stormwater Best Management Practices Manual with an emphasis on low-cost, effective green infrastructure solutions.]

Sen. Yaw also noted some communities in his district have told him they have had 500-year rain storms every year for the last few years and the number of microburst rain storms has been increasing.

[Note: The Center for Rural Pennsylvania issued a report in 2017 saying the number of heavy precipitation events have increased by 71 percent over the last 50 years as a result of a changing climate.]

Sen. Yaw expressed the frustration that somehow we find money to fix streams and replace bridges after a flood, but there isn’t money to fix some of these upfront before there is a problem.

[Note: Correct. There have been funding proposals repeatedly over the last decade to support local stormwater and flood reduction projects, but, somehow, the House and Senate have not passed them.

[The FY 2019-20 state budget actually CUT funding for local watershed and stormwater projects by $16 million.]

Tagland said DEP strongly encourages municipalities to work together to address their pollutant reduction requirements. Municipalities that work together can share the costs and credits associated with individual BMPs, participate in a joint Pollutant Reduction Plan, or be joint permittees.

He said they can also form a stormwater authority, which can serve either a single municipality or multiple municipalities. DEP routinely attends meetings to encourage such partnerships.

DEP is also encouraging collaborative arrangements to address stormwater pollution between municipalities and PennDOT and the Turnpike Commission. Collaboration is an efficient, cost-effective way to reduce pollution and meet requirements.

To fund BMP installation, operation, and maintenance, municipalities can use tax-based revenue sources; municipalities and authorities can also use fee-based revenue sources.

DEP encourages the use of fee systems because they assign costs based on the amount of stormwater runoff generated by each parcel of property. However, DEP does not have the authority to require stormwater fee systems nor does DEP have a standard for the creation of stormwater fee systems.

For more basic information on the MS4 Program, visit DEP’s Municipal Stormwater webpage.

Melissa Batula, Acting Director of PennDOT’s Bureau Project Delivery, described a number of partnerships PennDOT has with communities and DEP to help implement MS4 stormwater pollution reduction requirements dating back to 2007.

The projects included the York County 105 Mitigation MS4 Pilot Project, Saw Mill Run with the Pittsburgh Water and Sewer Authority, Stream Restoration Municipal Partnership in Dauphin County, Codorus Creek in York County, Carlisle Rain Gardens in Cumberland County and several more.

Batula also outlined the kinds of Best Management Practices PennDOT uses to deal with stormwater through a description of the Ohiopyle Multimodal Gateway Project in Fayette County.

She said PennDOT looks for opportunity to leverage state and local resources to address stormwater.

Benjamin Thomas, the Mayor of the Greencastle PA, and Eden Ratliff, Borough Manager for Greencastle, provided the Committee with a description of their efforts to comply with the MS4 requirements.

They described how, among other costs, prevailing wage requirements inflate stormwater management and other projects by 25 to 35 percent, along with bidding and engineering work.

Thomas suggested using local stormwater fees to create a local nutrient trading credit program to fund Best Management Practices that would be done by private landowners and would not be subject to prevailing wage and other cost inflators.

Ratliff outlined the stormwater fee program Greencastle has in place to generate about $630,000 a year and said the stormwater fee is larger than residents’ combined water and sewer bill.

“The Borough of Greencastle sincerely requests that the Commonwealth of Pennsylvania put a hold on the execution of all MS4 Pollutant Reduction Plans until a cost effective program can be put into place.

“This will allow for stormwater fees to be put into hold status while MS4 administrators work with DEP and the legislature to develop a comprehensive sediment reduction program that has a greater financial return on investment.

“In the meantime, MS4 communities such as Greencastle will continue to meet MS4 minimum control measures focusing on public education, detecting and eliminating illicit discharge, and community engagement with stormwater quality.”

Sylvia House, Zoning/Code Enforcement Officer for Antrim Township, Franklin County urged DEP to do a better job of educating municipalities on the MS4 requirements through monthly or quarterly webinars or other methods and share local water quality sampling data on streams, rather than relying on models and formulas to develop the MS4 plans.

She also recommended sites for stormwater projects not be limited to within the MS4 community permit area to help lower the cost to comply.

Lucas Martsof, Manager of Antis Township in Blair County and a member of the Intermunicipal Stormwater Committee, said stormwater problems are “the number one source of complaints from residents, a source of frequent property damage or notable inconvenience to residents and businesses, and one of the most time-consuming challenges confronting our public works staff.”

“Just as potable water distribution, sanitary sewers, and waste and recycling collection became recognized as crucial services over the last half century, we realize now stormwater management must also be included and required as a local government service. Like the other services, it has become an important health and safety issue and a crucial component in enhancing our quality of life in the Commonwealth.”

“... it is not unreasonable that the public pay for stormwater management in the same way they pay for sanitary sewage collection and treatment. But this transition to stormwater as a public utility is admittedly a difficult one. We are asking people to pay for something that they didn’t realize had a cost.”

“Like those other systems, someone has to pay, not just for the construction, but the planning, oversight and maintenance of the stormwater collection and treatment systems. The Pennsylvania General Assembly recognized this and amended the Second-Class Township Code in July 2016 to allow townships to levy and collect a fee for their stormwater systems.”

“Paying for stormwater management remains a political challenge, however. But this authorization does provide another funding option beyond General Fund expenditures and should prove helpful to municipal governments.”

“Some have called these costs “unfunded mandates” and a case can be made for that argument. Yet many also recognize that we have an individual and collective responsibility to properly collect and treat this runoff. We might instead view it as a deferred cost, one we postponed because we did not see the urgency of dealing with it in the second half of the 20th century.”

“Intermunicipal efforts and agencies make sense, then, and for several reasons.

-- Drainage does not pay attention to man-made boundary lines. For that reason alone, a regional approach makes sense simply because water must be managed by drainage boundaries, rather than municipal ones.

-- It allows for a unified message. A consistent and coordinated message is both cheaper and more effective.

-- It is administratively efficient. It allows both larger and smaller municipalities to have qualified and dedicated staff they might be hesitant to hire themselves.

-- It is cost effective. Each community pays only a share of a consolidated costs based on population, miles of waterways or amount of developed land.”

“Our COG [Council of Governments] has been fortunate to receive grants that cover close to 50 percent of our recent and current project costs. We believe our projects are bringing us the best return on investment possible, but remain concerned that it will be difficult to continue this as grant funds fade. What will the cost be when we run out of less expensive projects and the grant money decreases?”

Donna Fisher, District Manager, Blair County Conservation District, highlighted the issue of funding to support the program saying, “Funds are not attached to the permits to administer the program nor to implement Best Management Practices associated with program compliance. Staffing is a major challenge for many of our local entities. Funding is a monumental obstacle for compliance.”

She said Blair County created a countywide Total Maximum Daily Load Plan funded by the Chesapeake Bay Foundation-PA through the County Planning Commission that “saved countless dollars and time for our individual municipalities.”

“Work with the Alliance for the Chesapeake Bay, through a National Fish and Wildlife Foundation Grant funded Green Infrastructure demonstration projects and the creation of the CleanBlairWater website.

“The Blair County Conservation District received nearly $500,000 to set up water sampling stations and to fund green infrastructure projects related directly to the MS4 area.”

“The regional approach has worked in Blair County! However, each and every Blair County Municipality impacted by the MS4 regulations, has participated in the effort and has expended time, administrative funds and most recently started contributing project funds for permit compliance. Regionalization maximized efficiency for the program in Blair County but it did not eliminate the burden for the individual municipalities.”

Chelsey Ergler, Stormwater Coordinator of the Blair County Conservation District and the Blair County Intergovernmental Stormwater Committee, provided additional details on the cost of implementation in the County.

“For Blair County an MS4 municipality has estimated 7.2 percent of their entire General Fund expense budget will be spent on MS4 mandates in 2020.

“In 2021 it is estimated to increase to 10.2 percent of the total general fund expense budget, which is approximately a half million dollars of tax revenue for that municipality.

“Limited grant funding for projects is available and the ISC is actively seeking funding opportunities along with the Blair County Conservation District. However, no guarantee exists as to whether or not funding will be obtained or fully allocated.

“We respectfully request consideration for earmarking financial assistance to MS4 Municipalities.”

“Stormwater Pollution is coming to the forefront nationwide and it is only through collaboration with and assistance from governmental agencies that will fully allow these concerns to be addressed.”

Brian Harbaugh, Precision Manufacturing & Engineering Co, Inc., expressed concerns about the Greencastle stormwater fee raising the cost of his products by 3-5 percent and adversely impacting his business and employees.

“I hope that as a result [of this hearing] there can be some relief granted to the businesses of the Borough and Township to ease the financial burden this is creating.”

Click Here to watch a video of the hearing and for copies of all written testimony.

Written Comments

In addition to the comments presented to the Committee, the Committee received written comments on this issue from--

-- Randy Flair, Greencastle resident

-- Eric Holtzman, Greencastle resident

-- Darrin Youker, PA Farm Bureau, Director Of State Government Affairs, expressed concerns about the impact of local stormwater fees on the agriculture community and recommended changes to the laws authorizing the fees setting a maximum fee rate on farms and allow deductions for implementing farm conservation stormwater control practices.

-- Ron Furlan, PE, PP, Vice Chair of the Derry Township Municipal Authority Board in Dauphin County, said the Authority has implemented a local stormwater fee, but with a credit system allowing up to a 45 percent reduction if property owners install stormwater practices.

He also said there is a significant financial need to help local governments comply with the stormwater requirements and suggested the Johnstown Flood Tax, which generates about $300 million or so a year, be used for this purpose.

“Wouldn’t it be nice to actually use some of the revenue generated by this tax, which was originally created because of storm water and flooding, on actual stormwater and flooding needs?”

Furlan said another option would be to use a portion of the state Real Estate Transfer Tax to provide more funding to programs like Growing Greener, PennVest and the Commonwealth Financing Authority. A .25 percent increase in the tax would generate about $125 million.

He also provided background on what led to the adoption of the state Stormwater Management Act in 1978.

-- Harry Campbell, PA Executive Director of the Chesapeake Bay Foundation, said “Stormwater runoff from urban and suburban areas also impairs roughly 3,600 miles of rivers and streams in Pennsylvania, according to Pennsylvania’s draft 2018 Integrated Water Quality report. And Pennsylvania has made significant commitments to control the water quality impacts of stormwater runoff in its plan to meet Chesapeake Bay cleanup commitments.

“As last year’s rains reminded us, the Susquehanna River Basin is one of the most flood prone river systems in the United States and affects hundreds of thousands of residents and businesses.

He noted the American Society of Civil Engineers 2018 Report Card for Pennsylvania’s Infrastructure1, Pennsylvania’s wastewater (including stormwater) systems need significant repair and score a D-.

“Aging and deliberated stormwater sewers from the Commonwealth’s cities, towns, and boroughs discharge billions of gallons of untreated sewage into Pennsylvania’s rivers and streams each year. This waste carries bacteria, viruses, pathogens, and anything else flushed down the toilet to rivers and streams citizens rely upon for fishing, boating, and even as a source of drinking water.

“Unfortunately, Pennsylvania has the most combined sewer overflows (CSOs) in the nation, with over 1,600 identified outfalls. Many of these CSOs are within Pennsylvania’s portion of the Chesapeake Bay watershed.”

“Although the requirements can be daunting, thankfully there are myriad of public, private, and nonprofit entities capable of offering planning, design, and implementation assistance to MS4s, including alternative financing opportunities.

“For example, through a USDA Natural Resource & Conservation Service Conservation Innovation Grant, CBF along with several partners are exploring the concept of stormwater “offsetting” in which under certain situations MS4s could implement cost-effective non-urban stormwater practices to address MS4 PRP obligations.

“As part of this endeavor, the project is exploring under which circumstances certain types of private investments might help jumpstart implementation and leverage public grants/loans and locally generated fees.”

“...Pennsylvania’s stormwater infrastructure is in peril. Our health, our communities, our quality of life requires 21st century infrastructure for a 21st century economy. PRPs [MS4 Pollution Reduction Plans] provide a critical backbone for helping make that need into a reality.}

Analysis - No Help From State

Local stormwater fees have become necessary because the General Assembly has failed to adopt any new funding initiatives to help communities pay for these costs.

At a June 19 hearing by the House Environmental Resources and Energy and Local Government Committees on the MS4 Program, local government associations again asked the General Assembly to provide additional financial support for their stormwater pollution reduction and flood reduction efforts.

The final stakeholder-driven PA Chesapeake Bay Watershed Planning Steering Committee submitted to EPA in August reported communities and farmers needed an estimated $324 million annually over the next 6 years to implement the final plan.

Without the additional funding, the 43 counties in Pennsylvania that are part of the Chesapeake Bay Watershed would not meet the 2025 pollution reduction goals until 2044-- 19 years late.

That help did not come, in fact the FY 2019-20 state budget cut $16 million in funding that could have helped them.

More than two and a half years ago-- January 24, 2017-- the bipartisan Pennsylvania members of the Chesapeake Bay Commission dramatically wrote to all members of the Senate and House to spotlight the need for many more resources to address water pollution cleanup obligations across the state.

They highlighted the need for a dedicated Clean Water Fund.

The letter was signed by Sen. Gene Yaw (R-Lycoming), Majority Chair of the Senate Environmental Resources and Energy Committee, Sen. Rich Alloway (R-Franklin)- now retired, Rep. Garth Everett (R-Lycoming), Rep. Keith Gillespie (R-York) and Rep. Mike Sturla (D-Lancaster).

What happened? Nothing.

These failures by the General Assembly fly in the face of overwhelming public support for funding green infrastructure projects designed to reduce water pollution, flood damage and cleanup Pennsylvania’s rivers and streams.

So what were Senate and House members proud of in the FY 2019-20 budget? They were proud they passed an on time budget... but meanwhile in the real world it continues to rain, continues to flood and our streams are polluted.

Sen. Gene Yaw (R-Lycoming) serves as Majority Chair of the Senate Environmental Committee and can be contacted by calling 717-787-3280 or sending email to: gyaw@pasen.gov. Sen. John Yudichak (D-Luzerne) serves as Minority Chair and can be contacted by calling 717-787-7105 or sending email to: yudichak@pasenate.com.

NewsClips:

Concerns Aired Over Cost Of Stormwater Pollution Reduction Sediment Rule, Funding Needed

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Stormwater Fee Funded Projects Plan Gets Update By Wyoming Valley Sanitary Authority

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